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Article 9.2 of the Aarhus Convention and eu Law

Some remarks on cjeus case-law on access to justice in environmental decision-making

Jan Darpö

One important means for the implementation of the third pillar of the Aarhus Convention into eu law is the provisions on access to justice in the eia Directive (2011/92). The case-law of the cjeu on those provisions has developed rapidly in the last couple of years. This body of cases has given the concept “access to justice in environmental decision-making” a new meaning and improved the understanding of the requirement for judicial protection under eu environmental law. The aim of this article is to highlight this development and discuss a couple of key issues on access to justice. First, the relationship between “direct effect” and the individuals “rights” and the principles of effectiveness and judicial protection according to eu law is analysed. Thereafter, the meaning of “substantive and procedural legality” and the distinction between general and personal interests in relation to individual’s standing are discussed. The next issue concerns the role of environmental non-governmental organisations. Finally, the concept “courts or tribunals” in environmental decision-making procedures is considered.

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The Commission: A Sheep in Wolf’s Clothing?

On Infringement Proceedings as a Legal Device for the Enforcement of eu Law on the Environment, Using Swedish Wolf Management as an Example

Jan Darpö

This article centres on the effectiveness of Article 258 tfeu proceedings for the enforcement of eu environmental law. Employing as an example the case between the Commission and Sweden on the licensed hunting of wolves – a species enjoying strict protection in accordance with the Habitats Directive – the pros and cons will be discussed of infringement proceedings for the enforcement of the common responsibilities in the environmental area. While these proceedings can be effective in situations where they are used, they suffer unpredictability and a lack of consistency owing to political balancing within the Commission. Furthermore, lack of transparency in communication between the Commission and the governments of the Member States prevent public scrutiny of the system, which contributes to alienation of the eu from the public. Finally, on areas of environmental law – which are highly dependent upon scientific expert knowledge and thus dominated by ‘soft guidelines’ – infringement proceedings are an important complement to references from national courts to cjeu for preliminary rulings on controversial issues in order to avoid ‘circular decision-making’. Thus, the Swedish wolf issue can serve as a background for a more general discussion on infringement proceedings as an effective means for the enforcement of environmental law within the Union.

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Jan Darpö

In April 2017, the eu Commission published a “Notice on Access to Justice in Environmental Matters”, laying down the views of Brussels on this hot topic. The Notice takes stock of the dynamic development of the cjeu’s case law on the matter and draws cautious conclusions from this jurisprudence. This article is both an introductory and a short comment on the Notice. The main reasoning and conclusions drawn in the document are described, and then a couple of key issues are highlighted and discussed. All in all, evaluation of the Notice is positive, as it represents a rather big step forward compared with previous standpoints from Brussels. In this way, the Notice consolidates the impression that the eu is furnished with a Janus face concerning access to justice in environmental matters. It is very positive and affirming concerning legal challenges to administrative decision-making in national courts on the one hand, but very strict and of a rejecting nature when dealing with direct action to the cjeu on the other.

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Yaffa Epstein, Yaffa Epstein and Jan Darpö

The Stockholm Administrative Court recently ruled that Sweden’s wolf management policies are incompatible with the Habitats Directive. These policies are also the subject of an on-going infringement proceeding by the European Commission. The administrative court’s decision has been appealed. This case is significant for two reasons. First, it interprets controversial provisions of the Habitats Directive. But perhaps more importantly, it demonstrates the growing impact of EU law in a member state. This was the first major case in which the national courts were able to review a hunting decision pertaining to a species protected under EU law because standing to bring public interest lawsuits for the protection of species has been recognized only very recently. Under traditional Swedish procedural law, only the government can represent the public interest in administrative decision making and in court. Here, Swedish courts finally applied to hunting decisions the CJEU’s holding in Slovak Brown Bear, which says that national procedural law must be interpreted so as to allow environmental NGOs to challenge administrative decisions that might contravene EU environmental law. The court did not request a preliminary ruling despite that fact that controversial questions of EU law were implicated however. While the court applied EU law, it preferred to maintain control over its interpretation.